The Supreme Court has ruled that Alabama’s redistricting plans weaken blacks’ political power by concentrating them together, thus increasing Republican power. Justices sent the case back to the same District Court that had okayed Alabama’s new maps.

In 2012, Alabama’s Republican-led state legislature re-drew the
boundaries of the state legislature’s 105 House districts and 35
Senate districts. It focused on obtaining the theoretical ideal
of precisely equal population by keeping any deviation from that
goal to less than one percent. Alabama also sought to avoid
hampering racial minorities’ ability to elect their candidates of
choice ‒ as required by Section 5 of the Voting Rights Act of
1965 ‒ by maintaining roughly the same percentage of
African-Americans in majority-minority districts that existed
within the previous district lines.

The Alabama Legislative Black Caucus and the Alabama Democratic
Conference each sued the state in August 2012 over the
redistricting plans; the two cases were subsequently
consolidated. The appellants claimed the new district boundaries
created “racial gerrymanders” in violation of the
Fourteenth Amendment’s Equal Protection Clause ‒ a question the
Supreme Court ignored ‒ and the Voting Rights Act.

In December 2013, a three-judge panel from the US District Court
voted 2-1 to uphold the Alabama redistricting
map. The District Court ruled that the
claims of racial gerrymandering failed because “[r]ace
was not the predominant motivating factor.” The judges
believed the appellants needed to prove that racial
gerrymandering occurred on a statewide basis as well, which they
were unable to do.

The District Court also ruled that the plaintiffs lacked standing
because the record did “not clearly identify the districts in
which the individual members of the [Conference] reside,”
and that the Conference had “not proved that it has members
who have standing to pursue any district-specific claims of
racial gerrymandering.”

Supreme Court decision

In a 5-4 vote, the Supreme Court disagreed with that decision.
Justice Stephen Breyer wrote the majority opinion, in which Justices
Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena
Kagan joined.

Breyer applauded Alabama’s attempt to create an idealistic
“one-person, one-vote” situation by limiting the
deviation from the goal population to one percent, but noted that
a five percent deviation from the ideal is “generally
permissible.” However, he disliked how the state went about
drawing district boundaries to obtain that goal.

“In order for Senate District 26, for example, to meet the
State’s no-more-than-1 [percent] population-deviation objective,
the State would have to add about 16,000 individuals to the
district. And, prior to redistricting, 72.75 [percent] of
District 26’s population was black. Accordingly, Alabama’s plan
added 15,785 new individuals, and only 36 of those newly added
individuals were white,” he wrote, adding that was “a
remarkable feat given the local demographics.”

The Supreme Court cited the Department of Justice Guidelines for
Section 5’s pre-clearance determinations, which say that
districts are not based “on any predetermined or fixed
demographic percentages.”

The majority opinion also held that the appellants didn’t claim
that the Alabama legislature employed racial gerrymandering as a
whole, but that individual majority-minority districts were
racially gerrymandered, and that the evidence of such required
looking at the state as a whole.

“And those are the districts that we believe the District
Court must reconsider,” Breyer noted. “That Alabama
expressly adopted and applied a policy of prioritizing mechanical
racial targets above all other districting criteria (save
one-person, one-vote) provides evidence that race motivated the
drawing of particular lines in multiple districts in the
State.”

When it came to standing, the Supreme Court disagreed with the
District Court, writing that “the common sense inference is
strong enough to lead the Conference reasonably to believe that,
in the absence of a state challenge or a court request for more
detailed information, it need not provide additional information
such as a specific membership list.”

Dissenting opinions

In a scathing dissent, Justice Antonin Scalia called the
majority’s decision a “sweeping holding that will have
profound implications for the constitutional ideal of one person,
one vote, for the future of the Voting Rights Act of 1965, and
for the primacy of the State in managing its own elections.”

“If the Court’s destination seems fantastical, just wait
until you see the journey,” he added.

Joined by Chief Justice John Roberts and Justices Clarence Thomas
and Samuel Alito, Scalia sided with the District Court’s opinion
on the appellants’ standing, writing that they did not prove that
they sufficiently represented members in the affected Alabama
districts, as counties and districts have different boundaries.

“Frankly, I do not know what to make of appellants’
arguments. They are pleaded with such opacity that, squinting
hard enough, one can find them to contain just about
anything,” Scalia concluded. “This, the Court believes,
justifies demanding that the District Court go back and squint
harder, so that it may divine some new means of construing the
filings.”

In a dissent of his own, Thomas ‒ the Supreme Court’s only black
justice ‒ focused on the effective racism that resulted as a
consequence of Section 5 and the Supreme Court’s role in creating
Alabama’s current redistricting problems.

“The practice of creating highly packed ‒ 'safe' ‒
majority-minority districts is the product of our erroneous
jurisprudence, which created a system that forces States to
segregate voters into districts based on the color of their
skin” he wrote. “Nor does this Court have clean
hands.”

“I do not pretend that Alabama is blameless when it comes to
its sordid history of racial politics. But, today the State is
not the one that is culpable. Its redistricting effort was indeed
tainted, but it was tainted by our voting rights jurisprudence
and the uses to which the Voting Rights Act has been put,”
Thomas added. “Long ago, the DOJ and special-interest groups
like the [American Civil Liberties Union] hijacked the Act, and
they have been using it ever since to achieve their vision of
maximized black electoral strength, often at the expense of the
voters they purport to help.”